Day on Torts
Do you document substantive conversations with other lawyers? Once upon a time, it was unheard of to do so and some felt it was downright offensive. A lawyer can and should be trusted to stick by an understanding that is reached with another lawyer, the theory went, and to confirm a conversation in writing was a sign of mistrust.
Of course, there has always been and will always be lawyers who cannot be trusted. I know a few. You know a few. They are the scum of the profession, who thank God for the bottom-dwelling lawyers who steal from their clients (so the liars and cheaters can feel superior to someone).
Today, however, I think a quick note or email confirming a substantive conversation is a good thing – one that avoids the chance of innocent misunderstandings in the future. My view is that good lawyers no longer find such communications offensive and, indeed, I have found these lawyers are appreciative of the effort.
So, how do you write such a communication without sounding like a mistrustful jerk?
1. Use introductory phrases like this: "This will confirm our conversation of …." or "this will follow-up on our telephone call of …."
2. Repeat the understanding accurately. This is not a time for creative writing.
3. If you cannot remember the exact substance point that was reached in the conversation, admit it, state what you think the resolution of the point should be, and invite comment. It is far better to get the misunderstanding resolved now while the issue is fresh and your adversary has not taken a position (or you have not taken a position) based on a misunderstanding.
4. If you think of another point that should have been discussed but was not, simply state that, state your position, and invite comment.
5. Give your opponent an opportunity to correct any mistake in your summary of the conversation. And tell your opponent that if you do not hear back from them to the contrary you will assume that your statements are correct. Give your adversary a reasonable time under the circumstances to respond and, if you are taking critical steps based on a failure to respond to your inquiry (particularly if you imposed a short deadline) you would be well-advised to call your adversary and make sure there is no misunderstanding.
We all have lots to do in this stress-filled profession. Innocent mis-recollections can occur. We can reduce our stress by taking the simple step of communicating with our adversary in a non-threatening way and confirming details that can get lost over time. Doing so will allow us to keep our eye on the ball – the speedy resolution of a disagreement between clients – as opposed to getting into a fight with opposing counsel.